HO v. TULSA SPINE & SPECIALTY HOSPITAL
2021 OK 68 (2021)
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Rule of Law:
A temporary emergency executive order, issued by a governor pursuant to express legislative authority during a catastrophic health emergency, can articulate a clear mandate of public policy sufficient to support a wrongful discharge claim under the public policy exception to the at-will employment doctrine.
Facts:
- Kristie Ho was an at-will nurse employed by Tulsa Spine & Specialty Hospital since 2012 and had a history of positive performance reviews.
- On March 15, 2020, the Governor of Oklahoma declared a state-wide emergency due to the COVID-19 pandemic.
- The Governor subsequently issued an executive order, effective from March 24 to April 30, 2020, requiring medical providers to postpone all elective surgeries.
- Ho alleged that the Hospital continued to perform elective surgeries in violation of the Governor's order and did so without providing adequate personal protective equipment (PPE).
- On April 12, 2020, Ho contacted her manager to express her safety concerns, question the hospital's violation of the Governor's order, and inform the manager that she would not come to work.
- Ho was told that her absence would be considered a resignation, to which she replied she was not resigning but would not return to work until the ban on elective surgeries was lifted.
- On April 27, 2020, the Hospital terminated Ho's employment.
Procedural Posture:
- Kristie Ho filed an action for wrongful discharge against Tulsa Spine & Specialty Hospital in the District Court of Tulsa County, a state trial court.
- The Hospital filed a motion to dismiss, arguing that Ho, as an at-will employee, failed to state a claim for wrongful discharge under Oklahoma law.
- The trial court granted the Hospital's motion to dismiss the lawsuit.
- Ho, as the appellant, appealed the trial court's dismissal to the Supreme Court of the State of Oklahoma, the state's highest court, which retained the cause for review.
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Issue:
Does a temporary emergency executive order issued by the Governor, based on legislatively granted authority to manage a public health crisis, establish a clear mandate of public policy sufficient to support a wrongful discharge claim under the public policy exception to the at-will employment doctrine?
Opinions:
Majority - Kauger, J.
Yes, a temporary emergency executive order can establish a clear mandate of public policy sufficient to support a wrongful discharge claim. The Court held that because the Legislature expressly granted the Governor the authority to issue temporary emergency orders during a health crisis, those orders express the established public policy of the state, even if they are of limited duration. The Court reasoned that these statutorily authorized orders, aimed at curtailing an infectious disease, are analogous to public health codes, which have previously been recognized as sources of public policy. Therefore, Ho's allegation that she was fired for refusing to violate the Governor's order states a valid claim for wrongful discharge under the narrow public policy exception articulated in Burk v. K-Mart Corp., and the trial court's dismissal was premature.
Concurring - Kuehn, J.
Yes. This opinion emphasizes the narrow scope of the majority's holding. It clarifies that the Court is only deciding that an emergency executive order, established through statute, can serve as a source of public policy for a wrongful discharge claim, allowing the plaintiff's case to survive a motion to dismiss. The opinion does not decide the merits of the case, such as what specific procedures qualify as 'elective surgeries' under the order. It simply recognizes that when the Legislature delegates emergency power to the Governor, the Governor's resulting orders can express public policy that falls within the Burk exception.
Dissenting - Winchester, J.
No. The dissent argues that a 'transitory' emergency executive order is not the 'clearly established public policy' required to create an exception to the at-will employment doctrine. The order failed to define 'elective surgeries,' rendering it amorphous and not a clear mandate. The dissent also notes that other jurisdictions have declined to extend the public policy exception to executive orders and warns that the majority's decision erodes the employment-at-will doctrine by creating uncertainty for employers.
Dissenting - Kane, V.C.J.
No. This dissent contends that the majority improperly expands the reach of the Burk public policy exception. It argues that a legislative grant of authority to the Governor to issue orders is not itself an enactment of constitutional, statutory, or jurisprudential law, which are the only sources of public policy recognized by Burk.
Dissenting - Rowe, J.
No. The dissent argues that the majority incorrectly expands the narrow Burk exception by including provisions from emergency executive orders. While the Governor's authority to issue orders is statutory, the specific directives within those orders do not rise to the level of constitutional, statutory, or jurisprudential law as required by Burk. This approach disregards the Court's precedent to proceed cautiously when declaring public policy.
Analysis:
This case marks a significant expansion of the public policy exception to the at-will employment doctrine in Oklahoma. By holding that a governor's temporary emergency executive order can serve as a source of public policy, the court broadened the scope of the 'Burk tort' beyond traditional constitutional, statutory, and decisional law. This decision establishes a precedent that could affect future employment law cases arising from government responses to public emergencies. It provides a potential avenue of relief for employees terminated for refusing to violate emergency mandates, while simultaneously creating new compliance challenges for employers navigating such crises.
